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Stories from SlateActually, Paul Ryan, the President’s Words Do Matterhttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/12/paul_ryan_says_it_doesn_t_matter_when_trump_lies_on_twitter_that_s_garbage.html
<p>The defenses of President-elect Donald Trump’s Twitter feed are all pretty horrible. But of the many baffling and dangerous premises being used to defend Trump’s use of Twitter as a bully pulpit for spreading pernicious lies, perhaps the most baffling and dangerous is this one: <em>It’s just words.</em></p>
<p>Speaker of the House Paul Ryan did a version of this on <em>60 Minutes</em> on Sunday when he said that <a href="http://www.huffingtonpost.com/entry/paul-ryan-donald-trump-tweets_us_5844b2f2e4b0c68e04818206">the veracity of Trump’s tweets doesn’t matter</a>. All that matters is he won. “It doesn’t matter to me. He won the election,” Ryan told Scott Pelley. “The way I see the tweets you’re talking about, he’s basically giving voice to a lot of people who have felt that they were voiceless. He’s communicating with people in this country who’ve felt like they have not been listened to. He’s going to be an unconventional president.”</p>
<p>An even blunter version of the<em> president-elect’s words don’t matter</em> idea came from his former campaign manager Corey Lewandowski. “This is the problem with the media,” Lewandowski told a post-election panel at Harvard University’s Kennedy School of Government last week. “You guys took everything that Donald Trump said so literally.” Vice President–elect Mike Pence added his cheerful gloss on Trump’s false vote fraud claims on the Sunday shows as well: They’re “<a href="http://www.businessinsider.com/mike-pence-trump-voter-fraud-george-stephanopoulos-2016-12">refreshing</a>.”</p>
<p>The argument seems to be that Trump’s false statements don’t matter because everyone knows that his false statements are not necessarily meant to be true. His advisers contend that his actual words are just impressionistic communications—thought experiments that do not have any lasting force or meaning. This is not about “post-fact” America, or “<a href="https://en.wikipedia.org/wiki/Reality-based_community">reality-based communities</a>,” or even “<a href="http://www.mtv.com/news/2955021/shirtless-trump-saves-drowning-kitten/">fake news</a>.” This is a much deeper problem that goes to the nature of language in general, and a president’s words in particular. It’s certainly one thing to argue that Donald Trump’s words had no legal consequences during a political campaign, when he was scratching and clawing for advantage as an insurgent candidate. It’s quite another to suggest, as some increasingly do, that his words, or his tweets, or his off-the-cuff remarks carry no real force once he becomes the president. That is preposterous.</p>
<p>Even now, the president-elect’s words are more than mere words. Trump no longer speaks as a private citizen when he howls at the moon. Instead, his statements carry sovereign meaning and will be treated that way, regardless of the medium and regardless of what his followers choose to believe. It’s not just the media that cares: Litigants, activists, and government officials will almost certainly quote his utterances as evidence of his true intentions, plans, and views about the law. Foreign leaders will hear his threats and promises, and take them as pronouncements of intent. People who admire him will strive to act in his name and joyfully pursue his perceived agenda, pressed on by his words. That is terrifying. And those who fear his words will seek to obstruct what they understand to be the half-baked and dangerous ideas reflected in these comments. This should not be a complicated concept. It is something we teach our kindergartners: Words are signifiers of a person’s purposes and beliefs, and words have consequences. Paul Ryan, take note.</p>
<p>Nobody better articulated the notion that Trump’s language has no lasting force or meaning than his supporter, Peter Thiel. The libertarian entrepreneur behind the lawsuit that killed <em>Gawker</em> <a href="http://www.cnbc.com/2016/11/09/peter-thiel-perfectly-summed-up-donald-trump-in-one-paragraph.html">said in a speech in October</a> at the National Press Club that Trump would win the election <em>because</em> his supporters did not take his words literally. As Thiel put it:</p>
<blockquote>
I think one thing that should be distinguished here is that the media is always taking Trump literally. It never takes him seriously, but it always takes him literally. ... I think a lot of voters who vote for Trump take Trump seriously but not literally, so when they hear things like the Muslim comment or the wall comment, their question is not, ‘Are you going to build a wall like the Great Wall of China?’ or, you know, ‘How exactly are you going to enforce these tests?’ What they hear is we’re going to have a saner, more sensible immigration policy.
</blockquote>
<p>The consequences of this line of thinking are that it is now the job of the media, and of the American people, to struggle to decipher what the president’s words truly mean. Lewandowski’s similar point about Trump’s literalness offered this implication. “The American people didn’t” take it all literally, he said. “They understood it. They understood that sometimes—when you have a conversation with people, whether it’s around the dinner table or at a bar—you’re going to say things, and sometimes you don’t have all the facts to back it up.” The question he leaves open is how anyone is to discern which words are Trump’s real ones and which are just the stylings of a drunk at a bar.</p>
<p>This reading of Trump drains his words of any governing consequence. They are a kind of cultural chatter, no more or less important than any other celebrity “opinion,” like Susan Sarandon’s or the Philly Phanatic’s. The problem is that no leader can govern effectively, or make “great deals,” or make America great again if nobody trusts him to share a common baseline for dialogue.</p>
<p>This is not simply about technology or trust. This is precisely what happened to President Dwight D. Eisenhower, whose garbled syntax and extemporaneous speaking style earned him a reputation for being indecisive, confused, and out of touch during a crucial period of the Cold War and the struggle over racial equality. After he left office, revisionists tried to salvage his historical standing by claiming that he had governed with a “hidden hand.” Perhaps, but tremendous damage was done to his ability to lead and effectively govern. For example, asked about widespread local defiance of <em>Brown v. Board of Education</em>, Eisenhower repeatedly denied knowing what was going on. He compounded his verbal errors in July 1957, by musing at a press conference, “I can’t imagine any set of circumstances that would ever induce me to send federal troops ... into any area to enforce the orders of a federal court, because I believe that common sense of America will never require it.” Such statements were taken by Gov. Orval Faubus as license to whip up racist defiance of desegregation efforts in Arkansas and instruct the National Guard to turn away black students seeking to integrate Central High School. Trump runs similar risks with his undisciplined rhetoric.</p>
<p>Even if we could believe that Trump’s Twitter feed is merely a jumbled stream of consciousness, what do we do when his followers are stirred up to vilify Muslims or attack journalists? The problem isn’t just in distinguishing which of Trump’s words have meaning and which are mere performance art. The problem is that as president, <em>all </em>of his words will have meaning to somebody, and thus consequences. You don’t get to traffic in racially inflammatory discourse or advocate lawbreaking, and then escape responsibility by saying, “JK!” as Trump did after imploring Russia to spy on&nbsp;his political opponent Hillary Clinton. Loose talk of this sort makes Trump morally compromised when bad stuff starts to hit the fans based on his “meaningless words.”</p>
<p>Another equally frightening possibility: We will no longer be able to believe anything that comes out of his mouth. Some of us will choose to consult Pence for guidance as to what words count and what words don’t. Others will seek refuge in Trump’s press secretary. Trump will be in charge, but in name only. &nbsp;</p>
<p>We need to be very careful when Trump’s spokespeople tell us that there is a third way, that there is a kind of code at work here. When you are told that all Trump supporters know which of Trump’s boasts and threats are true and which are false, you are being spoon fed a linguistic truism: that you are only a real citizen when you are able to decipher which of his statements are true and which are bluster. This is a way of using language to posit that there are insiders and outsiders, and only the insiders know what truth really is while the outsiders will just have to suck it up. President Trump isn’t supposed to respond only to those who possess the decoder, people like Lewandowski, Thiel, and Ryan who feel empowered to make up what’s real and not after the fact because “he won.” The presidency is designed to lead us all, and to negotiate and deal on behalf of us all with foreigners who also might not get the code. When language itself is bifurcated so that only a slice of Americans understands what is true, we will become a country governed by some, for some, using a version of reality reserved for a very few.</p>Mon, 05 Dec 2016 20:56:25 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/12/paul_ryan_says_it_doesn_t_matter_when_trump_lies_on_twitter_that_s_garbage.htmlDahlia LithwickRobert L. Tsai2016-12-05T20:56:25ZTrump’s defenders say his lying tweets aren’t to be taken literally. They are sending us down a terrible road.News and PoliticsPaul Ryan Says It “Doesn’t Matter” When Trump Lies on Twitter. That’s Garbage.100161205014donald trumppaul ryanDahlia LithwickRobert L. TsaiJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/12/paul_ryan_says_it_doesn_t_matter_when_trump_lies_on_twitter_that_s_garbage.htmlfalsefalsefalsePaul Ryan says it “doesn’t matter” when Trump lies on Twitter. That’s garbage.The speaker of the House wants us to live in a reality invented by Trump and his supporters as they go along.Alex Wong/Getty ImagesTake note, Paul Ryan. Above, the House speaker appears at a weekly news briefing Thursday at the Capitol in Washington, D.C.Will John Roberts Save the Supreme Court From Donald Trump?http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/will_john_roberts_save_the_supreme_court_from_donald_trump.html
<p>Donald Trump’s surprise victory has left Democrats reeling, in alternating states of shock, anger, fear, and devastation. For many progressives, the most grievous loss is the Supreme Court. The expectation is that President Trump, with the help of a Republican Congress, will install a hard-right majority that will overturn cherished precedents, particularly those guaranteeing fundamental rights to women, minorities, and the LGBTQ community.</p>
<p>One of Trump’s first orders of business will be to replace conservative icon Antonin Scalia, who died in February. Because the Republican-led Senate has refused to hold a vote on Obama’s nominee, Merrick Garland, the court has limped along with only eight members ever since. During the campaign, Trump released a list of potential nominees for Scalia’s spot. Mainly state and federal judges, their pro-life, pro–Second Amendment, pro–voting rights restrictions, and anti–gay rights bona fides won uniform praise from Republicans.</p>
<p>There is little reason to believe that Trump will deviate from that list; he called it “definitive.” Unlike building a wall and making Mexico pay for it or bringing back manufacturing jobs to the Rust Belt, moving the court unrelentingly rightward is a promise Trump can actually deliver on.</p>
<p>Or can he? Trump’s ability to turn the Supreme Court into a rubber stamp for the right wing rests on two unknowns: whether he will have the opportunity to make a second appointment to replace a member of the court’s liberal wing and, if so, whether Chief Justice John Roberts is willing to march in lockstep with four conservative ideologues.</p>
<p>If Trump makes only a single appointment, we’re back to the status quo: four liberals and four conservatives with Justice Anthony Kennedy as the swing vote. Of course, this is horribly disappointing for progressives. Had Hillary Clinton won and Garland or someone similar been confirmed, the court would have changed dramatically, with the liberals holding a majority for the first time in more than 45 years.</p>
<p>Still, the status quo is far from a disaster. As long as it holds, two of the decisions progressives care most deeply about will remain intact: <em>Roe v. Wade</em>, which in 1973 constitutionalized a woman’s right to abortion, and <em>Obergefell v. Hodges</em>, which in 2015 constitutionalized the right of gay couples to marry.</p>
<p>The problem arises if the next death or retirement comes from the liberal wing or the center of the court. And it well might: Justice Ruth Bader Ginsburg, the leader of the liberal voting bloc, is 83; her colleague, Justice Stephen Breyer, is 78. Justice Kennedy, who wrote the <em>Obergefell</em> decision and has consistently voted to uphold <em>Roe</em>, is 80. If Trump installs not one but two Scalia lookalikes, it will be John Roberts, not Anthony Kennedy, who will cast the deciding vote in cases challenging <em>Roe</em> or <em>Obergefell</em>.</p>
<p>Is there any reason to believe that Roberts, like Kennedy, might swing in the liberal direction, particularly when it comes to gay rights and abortion, both of which Roberts staunchly opposes? Most experts scoff at the idea. Erwin Chemerinsky, a renowned constitutional scholar and dean of the University of California–Irvine School of Law says, “Roberts does not follow precedent when he doesn’t agree with it in the areas where he is a true believer. That includes <em>Roe</em>.”</p>
<p>And yet. Roberts is not simply one justice out of nine; he is the leader of a court that will bear his name throughout his tenure. As chief justice, he has a unique responsibility to safeguard the integrity of the third branch of government. If the Supreme Court devolves into an ideological mouthpiece, as overtly political as Congress and the White House, Robert’s decade-long advocacy for judicial restraint and respect for precedent will be read as cant. Roberts himself will be seen as a hypocrite who put his personal preferences above the rule of law. History will view him as a failure.</p>
<p>And John Roberts does not intend to fail. He is keenly aware of his institutional role and he cares deeply about legacy—the court’s and his own. In 2007, when Jeffrey Rosen of the <em>Atlantic</em> <a href="http://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/">asked</a> Roberts to comment on the men who occupied this most rarified of roles before him, he replied, “It’s sobering to think of the seventeen chief justices; certainly a solid majority have been failures.” He went on to explain that these predecessors failed because they were overtly ideological; their members fractious, their opinions splintered and doctrinally unsound. He told Rosen, “I think it’s bad, long-term, if people identify the rule of law with how individual justices vote.”</p>
<p>* * *</p>
<p>Many experts are convinced that <em>Roe</em> and <em>Obergefell</em> will be overturned with the installation of a second Trump pick and the plucking of the right case. Women seeking abortions will have to go to the blue states where they’ll still be allowed, a practical impossibility for many. Some may risk their lives with back-alley abortions. Gay people who are married suddenly won’t be anymore, at least not in red states, their guarantee of equal status wiped away with the stroke of a pen.</p>
<p>There are several reasons to hope that might not happen. In addition to Roberts’ regard for his legacy, there is his self-professed judicial philosophy, somewhat unconventional voting record, and the hard lessons learned from his predecessor-mentor, the late Chief Justice William Rehnquist.</p>
<p>During Roberts’ confirmation hearing before the Senate Judiciary Committee in 2005, he famously stated, “My job is to call balls and strikes and not to pitch or bat.” The role, Roberts said, was important but also limited by <em>stare decisis</em>—a Latin phrase meaning “to stand by things decided.” He explained, “Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges.”</p>
<p>As Roberts later told Rosen, if he began every conference with his colleagues with an “agenda” about how to decide a case, they would dismiss him, and rightly so. Instead, he said, he had worked hard to earn the trust of the other members of the court by not being an ideologue.</p>
<p>Of course, it may be credulous to take Roberts at his word. He has presided over some of the most sweeping and controversial decisions in recent memory, most notably in <em>Citizens United v. Federal Election</em> <em>Commission</em>, which held, in 2010, that corporations have a First Amendment right to spend unlimited amounts of money to elect the candidate of their choice, and <em>Shelby County v. Holder</em>, which invalidated, in 2013, a crucial part of the Voting Rights Act empowering the Justice Department to protect the rights of minority voters in states with a history of racial discrimination. Both decisions overturned decades of precedent.</p>
<p>But in 2012, it was Roberts—not Kennedy—who provided the fifth and crucial vote in <em>King v. Burwell</em> to uphold the Affordable Care Act, Obama’s signature legislative achievement, which provides health insurance to millions of people that would otherwise have none. Roberts also voted to reject a similar challenge to a statute expanding Medicaid coverage. He joined with Kennedy and three of the liberals in a 5-3 decision striking down Arizona’s infamous “show me your papers” immigration statute. (Elena Kagan, usually a reliable fourth vote for the left, recused herself.)</p>
<p>There is never any question about how Justice Clarence Thomas or Justice Samuel Alito will vote. Their records and their opinions demonstrate a fierce conservative ideology. Roberts is not so easily categorized, not so willing to be taken for granted.</p>
<p>He is also a student of history, and the Rehnquist court, which immediately preceded him, provides several important lessons. William Rehnquist, appointed by Richard Nixon in 1971, was a staunch conservative and intellectual heavyweight. By the time he assumed the position of chief in 1986, however, he occasionally proved to be less predictable.</p>
<p>In 2000, Rehnquist was presented with an opportunity to overrule the court’s 1966 decision <em>Miranda v. Arizona</em>, which established the famous “right-to-remain-silent” warnings that are written into the script of every crime procedural. Rehnquist had always held the <em>Miranda</em> decision in low regard. Now, it seemed, he might finally be in a position to persuade a majority of his colleagues.</p>
<p>Instead, Rehnquist authored a 7–2 opinion in <em>Dickerson v. United States</em> affirming <em>Miranda</em> as a “constitutional rule” that “has become embedded in police practice to the point where the warnings have become part of our national culture.” Rehnquist made it clear that while he might well have dissented from the original opinion, “the principles of <em>stare decisis</em> weigh heavily against overruling it now.”</p>
<p>That same year, however, the Rehnquist court lurched in the opposite direction, taking the unprecedented step of wading into presidential politics in <em>Bush v. Gore</em>. By a 5&shy;–4 margin, the conservatives, joined by Kennedy, stopped the recount of votes in Florida and handed the election to George W. Bush. In a bizarre, almost reasonless unsigned decision, the majority even made clear the case had no value as precedent.</p>
<p>Afterward, the court’s reputation cratered and Rehnquist, having presided over what is widely believed to be one of the most nakedly partisan decisions in history, saw his own legacy tarnished. Following her retirement, Sandra Day O’Connor, one of the justices who voted with the majority, admitted that it was probably a mistake to take the case, which, she said, “gave the court a less than perfect reputation.” Years later, when Roberts joined the majority upholding Obamacare, the conservative columnist Charles Krauthammer wrote in an op-ed for the <em>Washington Post</em> that Roberts felt compelled to do so in part because of the “bitterness and rancor” <em>Bush v. Gore</em> engendered, along with the belief that it “was a political act disguised as jurisprudence.”</p>
<p>What meaning will Roberts’ judicial philosophy, and the Rehnquist legacy, have if and when Roberts has an opportunity to lead his court in the overruling of <em>Roe </em>and <em>Obergefell</em>, among other lightning-rod precedents? My fervent hope and tentative predication—perhaps na&iuml;ve and quite wrong—is that he will stop short of doing so.</p>
<p><em>Roe</em> is not a single case; it is an impressive fortress of precedent spanning more than four decades. In <em>Planned Parenthood v. Casey</em>, decided in 1992, a sharply divided Supreme Court made it clear that repeated attempts to overrule <em>Roe</em>—six at that point—would never work.</p>
<p>Writing a plurality, Justice O’Connor—the first and at that time only woman on the court—explained, “Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in <em>Roe</em>, its decision has a dimension not reflected in other cases and is entitled to a rare precedential force.” To overrule a decision that proved crucial to “[t]he ability of women to participate equally in the economic and social life of the Nation” would be “a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.” The result, they predicted, would be “the country’s loss of confidence in the Judiciary.”</p>
<p>The central holding of <em>Roe</em> was affirmed as recently as June 27, when the current eight-member court struck down a Texas law requiring that doctors performing abortions have admitting privileges at local hospitals and that the state’s abortion facilities conform to the standards of “ambulatory surgical centers.” These requirements, the majority held, were not designed to protect a woman’s health but rather to place an “undue burden” on her long-settled right to end her pregnancy. (Roberts joined a dissenting opinion written by Alito, which argued that the case should not have been heard in the first place. He has never explicitly called for the overruling of <em>Roe</em>). Seen in this context, <em>Roe</em> looks less controversial than indisputably settled.</p>
<p><em>Obergefell</em>, decided in 2015, is a newer decision but also one borne of a steady accumulation of precedent. Two decades ago in <em>Romer v. Evans</em>, Kennedy, O’Connor, and the four liberals struck down an amendment to the Colorado Constitution that barred the state from protecting its citizens against discrimination based on sexual orientation. In 2003, the court, by a 6–3 vote, invalidated a state statute criminalizing sodomy in <em>Lawrence v. Texas</em>. To reach that result, Kennedy’s majority had to expressly overrule <em>Bowers v. Hardwick</em>, a 1986 relic upholding a similar Georgia law with this priggish sentiment: “respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” Voicing a barely concealed contempt, Justice Kennedy wrote, in <em>Lawrence</em>: “The central holding of <em>Bowers</em> has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”</p>
<p>But if one relic can be overturned, why not others? It is a fair question. The short answer is that the court’s policy is not to deviate from <em>stare decisis</em> except under the most extraordinary circumstances. It is only permissible when the rule has proved unworkable or anachronistic, when so few people rely upon it that its disappearance will not cause a societal disruption, or when the facts have changed so dramatically “as to have robbed the old rule of significant application or justification.” Viewed through this prism, it is readily apparent why overturning the <em>Bowers</em> decision, a holdover from an era where it was perfectly acceptable to denigrate gay people, would be seen as a welcome step forward, in the same way that <em>Brown v. Board of Education</em> was embraced as doing away with the bigoted “separate but equal” doctrine of <em>Plessy v. Ferguson</em>. </p>
<p>The gay rights movement received another crucial assist when, in 2013, the court invalidated the Defense of Marriage Act of 1996, enacted under the Clinton administration, which limited marriage “to a legal union between one man and one woman.” Seen in this context, <em>Obergefell</em> looks less groundbreaking than inevitable. Though once again, Roberts dissented, this time writing for himself, Scalia, and Thomas. He wrote that while the idea of same-sex marriage “has undeniable appeal” there is no right to it under the Constitution.</p>
<p>* * *</p>
<p>What would a <em>Roe</em> reversal look like? No matter how the majority dresses it up, the bottom line would be the same. When we told you four decades ago that you had a constitutional right to control your own body, we were wrong. Whether or not you can terminate an unwanted, even dangerous pregnancy actually turns on the question of what state you live in and whether you are willing and able to go elsewhere.</p>
<p>What would an <em>Obergefell</em> reversal look like? No matter how the majority dresses it up, the bottom line would be the same. When we said the Constitution guarantees you the right to marry your same-sex partner and you did, we were wrong. Your marriage is not real, the financial benefits and social legitimacy you thought you had, those things are not real. Whether you are legally married or not depends on the state you live in and whether you are willing and able to go elsewhere.</p>
<p>The laws upholding the right to choose and the right to marry are not unworkable in practice and they are anything but anachronistic. Nor has there been a dramatic change in the underlying facts that robs the laws of their relevance or justification. The only reason to overturn these precedents is ideology: that is, a majority of justices who believe that abortion and gay marriage are morally wrong. Should Roberts allow the ideologues to have their way, the consequence will be a terrible disruption to the lives of millions of people who have come to rely on these constitutionally enshrined rights when making crucial life decisions. And the Roberts court would go down in history as having bankrupted the only branch left to stand by things decided.</p>Mon, 21 Nov 2016 18:16:44 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/will_john_roberts_save_the_supreme_court_from_donald_trump.htmlLara Bazelon2016-11-21T18:16:44ZMaybe not—but he might.News and PoliticsWill John Roberts Save the Supreme Court From Donald Trump?100161121012lawpoliticssupreme courtscotusdonald trumpLara BazelonJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/will_john_roberts_save_the_supreme_court_from_donald_trump.htmlfalsefalsefalseWill John Roberts save the Supreme Court from Donald Trump?Maybe not—but he might.Photo illustration by Slate. Photos by Paul J. Richards/AFP/Getty Images, Mark Wilson/Getty Images.Chief Justice John Roberts is a student of history, and of the court of his predecessor-mentor William Rehnquist, and he cares deeply about his legacy.How Painful Can Trump Make the Lives of Immigrants?http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_immigration_agenda_goes_to_washington.html
<p>The day after the presidential election, I stood in front of a class of foreign graduate students who had come to the United States to study U.S. and international law, trying to reassure them that they were not in danger of being deported. </p>
<p>“You are all here legally on student visas,” I reminded them.&nbsp;“President-elect Trump has never threatened to deport noncitizens who have permission to be in the United States.” </p>
<p>Then a student in a hijab raised her hand and asked, “What if I leave the country to visit my family for the holidays, or to do research?&nbsp;Will I be allowed back in?”&nbsp;Her question has no easy answer.&nbsp;Trump has <a href="http://www.npr.org/2016/11/09/501451368/here-is-what-donald-trump-wants-to-do-in-his-first-100-days">vowed</a> to “suspend immigration from certain terror-prone regions” within his first 100 days in office.&nbsp;The executive branch has enormous discretion to bar individuals or groups from entering the United States, even when the person seeking entry has a valid visa. I hesitated.&nbsp;“Perhaps you should travel before Jan. 20,” I told her finally. So much for calming their fears.&nbsp; </p>
<p>Trump’s presidential campaign centered on his plans to remake U.S. immigration policy.&nbsp;In addition to suspending immigration from yet-to-be named regions, he has <a href="http://www.npr.org/2016/11/09/501451368/here-is-what-donald-trump-wants-to-do-in-his-first-100-days">pledged</a> to reverse President Obama’s executive action granting certain undocumented immigrants temporary reprieves from removal, to build a <a href="https://www.youtube.com/watch?v=80cY76l-pMQ">“big, beautiful wall”</a> between the United States and Mexico, and <a href="http://www.nytimes.com/2016/05/20/us/politics/donald-trump-immigration.html?_r=0">to deport millions of undocumented immigrants within a few years</a>.&nbsp;Can he make good on those promises? How scared should my students be?</p>
<p>The president has unusually broad authority over immigration policy, but his power is not unlimited.&nbsp;President Trump, like presidents before him, may find it harder than he expects to persuade Congress, even a Republican-led Congress, to enact laws and fund his projects, to convince courts that his actions are constitutional, and to persuade the men and women who implement immigration law to exercise their discretion as he would like.</p>
<p>Trump can quickly implement proposals that do not require the participation of another branch of government.&nbsp;His proposed ban on immigration from certain regions—which replaced his previous and constitutionally suspect plan to ban all Muslims—is one of these.&nbsp;By focusing on geography and not religion, Trump avoids a court challenge that might have slowed down implementation.&nbsp;The Immigration and Nationality Act gives the president the unilateral power to deny entry to “any class of aliens” whom he believes are “detrimental to the interests of the United States,” which is all the authority Trump needs. </p>
<p>Likewise, Trump can easily rescind Obama’s 2012 executive action granting a temporary reprieve from removal to unauthorized immigrants who were brought to the United States as children.&nbsp;As of today, <a href="http://www.migrationpolicy.org/sites/default/files/publications/DACAatFour-FINAL.pdf">more than 700,000 undocumented youth</a> have received deferred action and temporary work authorization, allowing them to come out of the shadows for the first time in their lives.&nbsp;Trump can eliminate this program with the stroke of a pen. </p>
<p>Building a wall across the southern border will be harder, however, because it requires money from Congress.&nbsp;A lot of money.&nbsp;A wall the scale of the one Trump promised—<a href="http://www.nytimes.com/2016/05/20/us/politics/donald-trump-immigration.html?_r=0">30 to 50 feet tall, stretching 2,000 miles</a>—is <a href="http://fronterasdesk.org/sites/default/files/field/docs/2016/07/Bernstein-%20The%20Trump%20Wall.pdf">estimated to cost between $15 billion and $25 billion</a>.&nbsp;Trump has said that he will make Mexico pay, but he has not explained how he would force it to do so, and Congress <a href="http://www.reuters.com/article/us-usa-election-wall-idUSKBN135175">does not appear willing to fund the cost</a> in the meantime. In a recent interview, Trump implicitly acknowledged the need to scale back, agreeing that there <a href="http://www.cbsnews.com/news/60-minutes-donald-trump-wall-mexican-border-fence-segments/">“could be some fencing”</a> instead.</p>
<p>Can Trump deport all of the approximately 11.3 million unauthorized immigrants currently living in the United States within a few years of taking office, as he had <a href="http://www.nytimes.com/2016/05/20/us/politics/donald-trump-immigration.html?_r=0">promised to do earlier in the campaign</a>?&nbsp;Not on his own.&nbsp;Removals on a mass scale would require creating a deportation force with the authority to conduct daily raids on workplaces and homes, estimated to cost far more than that wall—<a href="https://www.americanactionforum.org/research/the-personnel-and-infrastructure-needed-to-remove-all-undocumented-immigrants-in-two-years/">$400 billion or more. </a>&nbsp;</p>
<p>Even Trump has backed away from his more extreme positions on mass deportation.&nbsp;In a recent <a>interview</a>, the president-elect declared many undocumented immigrants to be “terrific people”—a jarring sentiment from a man who earlier said they all must go.&nbsp;He then explained that he would prioritize the removal of the “2 or 3 million” unauthorized immigrants who, he claims, have committed crimes.&nbsp;(That number is contested; the <a href="http://www.migrationpolicy.org/research/understanding-potential-impact-executive-action-immigration-enforcement">nonpartisan Migration Policy Institute puts it at closer to 800,000</a>.)&nbsp;But even that scaled-back deportation plan would be expensive.&nbsp;President Obama <a href="http://abcnews.go.com/Politics/obamas-deportation-policy-numbers/story?id=41715661">deported more people than any other president</a>, expending all available funds to do so, and yet removed only about 400,000 people a year.&nbsp;Trump cannot deport millions in short order unless he can get Congress to go along with his plan.</p>
<p>In part, this is because deportation is not as simple as Trump’s rhetoric suggests.&nbsp;Noncitizens living in the United States have statutory and constitutional rights that must be protected in the removal process.&nbsp;They have the right to a hearing before an immigration judge, representation by counsel (if they can afford one), and they can appeal an adverse decision to a higher level of the agency bureaucracy—a process that can take years in the backlogged immigration courts.&nbsp;Furthermore, federal law provides some particularly sympathetic undocumented immigrants, such as trafficking victims and those eligible for asylum, the right to remain in the United States.&nbsp;Unless Trump can get Congress to repeal these laws, immigration officials can continue to use their discretion to give relief to at least some of the undocumented immigrants that Trump seeks to remove.&nbsp;&nbsp; </p>
<p>But there is one goal that Trump has already accomplished without the help of any other branch of government: <a href="http://jezebel.com/heres-what-immigration-attorneys-are-telling-their-terr-1788818801">He has made immigrants afraid</a>.&nbsp;Just a few years ago, undocumented youth provided their names, addresses, and even fingerprints to the government in return for permission to live and work temporarily in the United States. Now these same immigrants fear that the data they handed over will be used to target them for removal.&nbsp;Undocumented immigrants who have lived in the United States for years, with U.S. citizen children and without a criminal record, were once a low priority for removal.&nbsp;They woke up on Nov. 9 knowing this was no longer the case.&nbsp;Even legal immigrants, like the foreign students I teach, worry that they will be expelled from the United States or denied reentry if they ever leave.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </p>
<p>Perhaps this was Trump’s intent all along. Even if he cannot quickly build a wall or remove millions of unauthorized immigrants, he can instill fear, driving some immigrants to leave and others not to come in the first place.&nbsp;Fear alone can reduce immigration—both legal and illegal—without the federal government spending a cent.&nbsp;For this, at least, Trump gets all the credit. </p>Wed, 16 Nov 2016 22:55:56 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_immigration_agenda_goes_to_washington.htmlAmanda Frost2016-11-16T22:55:56ZThe threats he actually will and won’t be able to follow through on.News and PoliticsCan Trump Really Carry Out His Threats Against Immigrants?100161116015donald trumpimmigrationAmanda FrostJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_immigration_agenda_goes_to_washington.htmlfalsefalsefalseThe immigration threats Trump will and won’t be able to follow through on.Here is what he can and can’t do.Robyn Beck/Getty ImagesSupporters of Donald Trump attend a campaign rally on May 25, 2016, in Anaheim, California.Republicans Stole the Supreme Courthttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/what_democrats_should_do_about_the_supreme_court.html
<p>We are already hearing from Republicans and Democrats in leadership positions that it is incumbent on Americans to normalize and legitimize the new Trump presidency. We are told to give him a chance, to reach across the aisle, and that we must all work hard, in President Obama’s formulation, to make sure that Trump succeeds. But before you decide to take Obama’s advice, I would implore you to <a href="https://www.washingtonpost.com/posteverything/wp/2016/11/11/stay-angry-thats-the-only-way-to-uphold-principles-in-trumps-america/">stand firm and even angry on this one point</a> at least: The current Supreme Court vacancy is not Trump’s to fill. This was President Obama’s vacancy and President Obama’s nomination. Please don’t tacitly give up on it because <a href="http://www.realclearpolitics.com/video/2016/11/11/merkley_vacant_supreme_court_seat_being_stolen_from_obama.html">it was stolen</a> by unprecedented obstruction and contempt. Instead, do to them what they have done to us. Sometimes, when they go low, we need to go lower, to protect a thing of great value.</p>
<p>The seat that became vacant when Antonin Scalia died earlier this year was blocked by the Republican party for 9 months for reasons that were transparently false from the outset. At first the senators obstructed the president’s pick of moderate Merrick Garland because they claimed Obama was a “lame-duck president” with only a year remaining in his term, and the “people” should be allowed, for the first time in history, to decide for themselves. Later, the reasons for obstruction changed when Senate Republicans began to run on the promise to block any nominees put forward by a Democratic president. Virtually all of those senators won their seats back on the strength of that pledge. Smart guys.</p>
<p>For Republicans, keeping the Supreme Court conservative was more urgent than governance or leadership or an independent judiciary. To reward that by meeting President Trump halfway on his nominees is not sober statesmanship. It’s surrender. Senate Republicans are already crowing that they can have a Justice Ted Cruz named in the coming days and seated by February. They can. But it is not his seat.</p>
<p>The only proper response from progressives today must be that Donald Trump is a lame-duck president with only four years left in his term, and we must let the people decide the next justice for the Supreme Court. Less fatuously, it must be to obstruct the nomination and seating of any Trump nominee to fill Scalia’s seat. We will lose. But that’s not the point now. Democrats need to repeat Ted Cruz’s lie that eight justices will suffice. If Democrats can muster the energy to fight about nothing else, it should be this, because even if you believe the election was fair or fair enough, the loss of this Supreme Court seat was not. That seat is Merrick Garland’s.</p>
<p>To reiterate, there is absolutely nothing procedural to be done about SCOTUS now. Put aside the Kickstarters and the viral petitions to demand a seat for Garland because an argument was floated that the GOP’s failure to hold hearings represented a <a href="https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html">waiver by Senate Republicans</a>, leaving Obama free to fill the seat. The waiver idea has been roundly debunked across the ideological spectrum. Save your energy. If Merrick Garland is to be seated in the coming weeks at the Supreme Court it will be by way of an Obama recess appointment, if there is a recess, and in that case he will be seated for a year and no more. It will all be a grotesque spectacle, demeaning the players and diminishing and compromising the public esteem for the court. A recess appointment would be the kind of stunt-nomination Obama has eschewed throughout his presidency, guaranteed to embarrass the executive and Judge Garland, who deserved to have us fight for him long before now. But it would at least be a symbol that tantrum can be met with tantrum, and that Democrats will not be rolled. So that’s one option. It’s not a fix. But at least it’s not a capitulation.</p>
<p>Another option, just in case President Trump decides against uniting America by renominating Judge Garland in January: Senate Democrats should filibuster whomever Trump picks. Perhaps Trump will nominate his own Harriet Miers. His sister the judge or his daughter the clothing designer or white nationalist Steve Bannon or Peter Thiel. The “list” of 21 possible nominees from his website, posted to convince conservatives before Election Day that Trump’s general apathy about the courts could be harnessed for the goals of the Heritage Foundation, <a href="https://www.bustle.com/articles/194939-who-will-donald-trump-appoint-for-the-supreme-court-his-pick-will-almost-definitely-be-conservative">appears to have been taken down now</a>. Who knows what he plans to do?</p>
<p>Anyway, If Senate Democrats attempt to filibuster, Senate Republicans will probably just kill the filibuster for Supreme Court seats, <a>as they have already promised to do</a>, and as Democrats only last week were promising to do if they won the Senate. This is how it will go down. Democrats will live to regret the killing of the filibuster. But whether they killed it or Republicans do it, we knew it would go, and with it all the norms and values it represented.</p>
<p>Realistically, what is left to do, aside from sending fresh fruit and a Vitamix to Justices Ginsburg and Breyer, is to figure out a way to make this a front-page story until January. Our choices now are to make a huge national fuss or to quietly and maturely accede to a Trump nominee, who will assuredly be on board for rolling back <a href="http://www.usnews.com/news/politics/articles/2016-11-11/who-will-donald-trump-nominate-to-the-supreme-court"><em>Roe v. Wade</em>, protecting religious objectors from general laws, and expanding gun rights</a>. We can hold out hope that Trump’s general lunacy and opportunism will lead him to seat someone wholly unpredictable, a kind of sweeps-week stunt nominee like Michelle Obama or Justice Omarosa or his son Barron. But for all that I have railed against destructive partisanship directed at fragile courts, I am persuaded now that the only way to answer nihilism is with nihilism of our own.</p>Mon, 14 Nov 2016 21:59:40 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/what_democrats_should_do_about_the_supreme_court.htmlDahlia Lithwick2016-11-14T21:59:40ZDemocrats, don’t let them get away with it.News and PoliticsRepublicans Stole the Supreme Court. Democrats, Don’t Let Them Get Away With It.100161114016supreme courtdonald trumpDahlia LithwickJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/what_democrats_should_do_about_the_supreme_court.htmlfalsefalsefalseRepublicans stole the Supreme Court. Democrats, don’t let them get away with it.Sometimes, when they go low, we need to go lower, to protect a thing of great value.Jonathan Ernst/ReutersChief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Sotomayor await President Obama’s State of the Union address in Washington, D.C., Jan. 12, 2016.Will Trump’s Rule of Law Be Our Rule of Law?http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_threat_to_the_rule_of_law.html
<p>America has surprised herself Wednesday morning, by democratically electing, to its highest political office, a man with no record of government service and a temperament built of equal parts vengeance and viciousness. America has elected a man who is likely uncheckable as a matter of personality and ensured that he is also uncheckable as a matter of constitutional democracy, by giving him control of the House, the Senate, and the federal judicial branch.</p>
<p>I suspect we will come to learn fairly quickly whether the same Republicans who said they deplored Trump’s words and actions, but supported and endorsed him anyhow, will now act to oppose him as president. I believe they are utterly terrified of him. Now more than ever. He would have accepted nothing less of them.</p>
<p><a href="http://nymag.com/daily/intelligencer/2016/11/andrew-sullivan-president-trump-and-the-end-of-the-republic.html?mid=twitter_nymag">Like Andrew Sullivan</a>, I hold out very little hope that most Republicans in Congress will be anything but supine for President Trump as he begins to unspool his broad, unspecified plans to singlehandedly enact unconstitutional stop-and-frisk laws nationwide or to unilaterally <a href="http://www.theatlantic.com/politics/archive/2016/08/does-the-first-amendment-protect-deliberate-lies/496004/">dismantle the First Amendment protections for journalists</a>, even though he has no authority to do so. I don’t believe he will build a wall and make Mexico pay for it, but I don’t believe the new Congress would stand up to him to stop that, or his reinstitution of torture, or his immigration dragnets, if he wanted to try. I believe that if President Trump instructs his special prosecutor Chris Christie or Rudy Giuliani to find a way to lock Hillary Clinton up, he would do so, gleefully, and that many millions of people will look on and feel that justice—whatever that means going forward—was done.</p>
<p>I find slim hope in the possibility that Paul Ryan or John Roberts will sacrifice everything to protect the newly vulnerable Muslims, and the undocumented, and the LGBTQ teenagers, and the pregnant women. Maybe. But why should they start now?</p>
<p>I find myself wondering about the fate of the entire legal apparatus of government—the FBI that Trump has berated constantly on the campaign trail, the <a href="https://www.lawfareblog.com/more-donald-trump-and-justice-department">career officials at the Justice Department</a> who made noises about quitting en masse if he took office, the generals he has berated and belittled and sworn to undermine. I wonder <a href="http://www.reuters.com/article/us-usa-election-trump-purge-exclusive-idUSKCN10003A">whether half-floated purges of all political appointees</a> will be realized. Does everyone stay on and do their jobs under a man who is proudly incurious and demonstrably interested only in winning at all costs? Does everyone simply agree to stay on and work their levers, in the hope that they might even mitigate the damage that could be done by one of Trump’s true patriots?</p>
<p>John Roberts was forced to sit by silently this year while they maligned his Supreme Court. <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2016/06/trump_s_attacks_on_judge_curiel_are_in_line_with_the_gop.html">Judge Gonzalo Curiel</a> was forced to sit silent when Donald Trump disputed his patriotism. In order to be blind, it seems that justice must also keep silent.</p>
<p>Over and over Tuesday night, as everything that holds itself out as a check or a balance disintegrated, my thoughts turned to <a href="http://www.slate.com/articles/sports/sports_nut/2016/09/colin_kaepernick_s_protest_is_working.html">Colin Kaepernick</a> and his campaign to take a knee during the playing of the national anthem, an effort to protest systematic racial inequality in America and ongoing policy brutality. His statement—much maligned, especially by President-elect Donald Trump—that this anthem is not his anthem was prescient, as Americans wake up Wednesday morning to try to decide whether this president will be their president and whether his law will be their law.</p>
<p>All night and into Wednesday morning, I have been imagining Hillary Clinton’s concession speech. Does she concede graciously, with a call to her supporters to unify behind a man who has no impulse control and no guiding moral doctrine beyond self-enrichment? Does she concede as though she has lost to a Kasich or a Rubio? Or does she take a knee, and risk openly fracturing a country that is perhaps too fragile to recover?</p>
<p>The asymmetry here was always plain. Trump was either going to win or he was going to dispute his loss and cash in. Clinton, for her part, was always going either to win and to be unable to govern or to lose and concede graciously. If one is unconstrained by consequences and unafraid of normalizing the intolerable, such choices become vastly easier.</p>
<p>For those of us who believe—as the Clintons do—in the basic tenets of constitutional democracy, in respect for the law, and the courts, and for neutral processes, Trump is the end of that line. These words that we use, <em>due process</em> and <em>equality</em> and <em>justice</em> have actual force and meaning. They are the tools and also the end product of the entire enterprise of democracy. They are the only bulwark against totalitarianism we know.</p>
<p>Donald Trump has never seen the law as anything beyond another system for self-enrichment. Judges are tools. Laws are malleable. True justice flows in a singular direction: toward him. And Wednesday the entire edifice of the American legal system answers to that vision, unless it opts not to.</p>
<p>Lawyers are by definition small-c conservative, incrementalist, and cautious. We don’t do revolution if a strongly worded footnote would suffice. We believe in facts. We believe in neutral rules and principles of fairness. We believe in judicial independence. We will be more apt than anyone to try to shift along in Trump’s America, doing our best. Hoping to make it a little more just for the weakest around the margins.</p>
<p>I don’t know how Hillary Clinton—a consummate lawyer, a small-c conservative by temperament and by design—concedes to this regime. I imagine she feels that for the good of the nation, she must. And for the good of the nation, lawyers across the country need to suit up and do the work to minimize the damage Trump can cause. But today, I am taking a knee, in the face of “justice” that bears no resemblance to what is just and the imminent prospect that the rule of law is about to become a machine to grind up the weak and betray the powerless. This is not the rule of law as I understand it. It is the systematic deployment of law to promote one man.</p>
<p><strong><em><a href="http://www.slate.com/topics/c/2016_campaign.html">See more Slate coverage of the election.</a></em></strong></p>Wed, 09 Nov 2016 15:02:44 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_threat_to_the_rule_of_law.htmlDahlia Lithwick2016-11-09T15:02:44ZThe fate of the entire legal apparatus of government is in the balance.News and PoliticsI Am Terrified About the Fate of the Entire Legal Apparatus of Government1001611090102016 campaigndonald trumpDahlia LithwickJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_s_threat_to_the_rule_of_law.htmlfalsefalsefalseI am terrified about the fate of the entire legal apparatus of government:Trump is a threat to the rule of law.Michael Zagaris/San Francisco 49ers/Getty ImagesEric Reid and Colin Kaepernick kneel in protest during the national anthem on Sept. 18 in Charlotte, North Carolina. Can we take a knee in the face of Trump’s “justice”?The Woman Washington Never Figured Outhttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/in_memory_of_janet_reno_the_first_female_attorney_general.html
<p>Friends of the rule of law are mourning the death of <a href="http://www.nytimes.com/2016/11/08/us/janet-reno-dead.html">Janet Reno</a>, the first woman to hold the job of attorney general. But she was far more than just an important historical first. In the 1990s, I ran the Justice Department’s press office, which gave me a front-row seat for the culture clashes that came with being a “first woman.” And I watched the D.C. and entertainment establishments grow baffled over a person too straightforward to figure out.</p>
<p>Like Sandra Day O’Connor and other pioneers of the <em>Mad Men</em> era, Reno came of age when the ceiling for women was lower and stronger. “When I was in high school it was unusual for women to go to college,” she would sometimes tell audiences, “and when I was in college people said women didn’t go to law school.” When she graduated from Harvard Law she was offered legal secretary jobs. (So was O’Connor.) And after several decades in Miami as one of America’s best prosecutors, her reward upon arriving in 1990s Washington was a whisper campaign that any career woman who was single and childless must be a lesbian. (“I am just an <a href="http://www.newsweek.com/janet-reno-are-you-ready-go-194950">awkward old maid</a> who has a very great attraction to men,” she was forced to joke.) The<em> Economist</em> called her a “54-year-old, 6’2” pipe-smoking spinster.”</p>
<p>Reno got over being historic within minutes. “I’m the third woman Bill Clinton thought of for the job,” she told me once. (Two other female nominees had withdrawn their names after not properly paying taxes on their domestic help.) Indeed, for Reno, I think feminism was all about doing the job. She launched historic campaigns to fight domestic violence and worked behind the scenes to make sure that female border patrol guards got bulletproof vests that women could actually wear. But she routinely stripped boilerplate feminist lines from speeches I prepared for her, and when a conclave of senior Clinton administration women gathered to compare notes on getting second-tier treatment, she was silent until her turn came. “I don’t have any problems getting my calls returned,” she said.</p>
<p>Those of us who got to work with her learned that Reno’s freakishly strong sense of integrity and security brought new possibilities to the role of attorney general, a job that wins you a permanent place on Washington’s political dartboard. When your boss works the phrase “Do the right thing” into meeting after meeting, it ripples out and makes a difference in a department of 120,000 people. </p>
<p>It didn’t take long for the rest of the country to discover that its attorney general was someone different. Just hours after the Branch Davidian compound in Waco, Texas, burned, following a federal law enforcement raid, she went on <em>Nightline</em> and <a href="https://www.justice.gov/archive/ag/speeches/1993/04-19-1993c.pdf">took responsibility</a>: “This was a judgment I made. I investigated it completely. I did all the—I asked the questions, I talked to the experts when I had questions, and I think the responsibility lies with me.”</p>
<p>These words almost need a translator in 2016. Not passing the buck landed Reno on the cover of <em>Time</em>. Her plainspoken sense of responsibility won her admiring fans around the country. At the White House—where the motto under every administration is that Cabinets tell bad news and leave the good stuff to the boss—some even fretted that unexpected credit was being earned, and she was earning it. Her first director of public affairs, former NBC Supreme Court reporter Carl Stern, remembers telling a reporter at the time, “It’s like working for Lincoln.”</p>
<p>Of the many public figures I’ve seen, Reno managed better than any to emote this sense of authenticity. Her clothes were off the rack, her syntax was occasionally garbled, and she favored what she called “small, old words” over lofty lines, but time and again she came out of a packed room with a standing ovation, no matter the topic. People got <em>who</em> she was, and she became a champion for a generation of career women middle-aged and older.</p>
<p>Reno became known for walking to the office, taking a pass on touring the talk shows and the D.C. parties, and appointing more independent counsels than all of her predecessors combined. She preferred to travel the country seeking feedback from anyone affected by the justice system. She would come back from a trip to Montana with notes about a deputy sheriff who found a line in a federal form confusing. (It got fixed.) She would give her home phone number out during speeches, until her FBI security team made her stop. </p>
<p>She was also the most secure person I ever worked with. She was the daughter of two reporters, and every Thursday morning, any reporter in America could come in and ask her any question he or she wanted. She loved to laugh, and in her office she collected political cartoons that attacked her. When a congressional staffer tried to put a gas mask next to her as a TV prop during a hearing on Waco, she popped it into her lap. When Parkinson’s disease made her hands tremble, she refused a medication that would have stopped the shaking but wasn’t medically necessary.</p>
<p>All of this made for a once-in-a-lifetime boss. But this glass ceiling–shattering, overachieving woman, indifferent to glamorous hairstyles and chic clothes, exuding a persona that flowed from her Joe Friday integrity, also became a Rorschach test for 1990s attitudes toward gender and progress. As Susan Douglas puts it in her book <a href="http://www.amazon.com/dp/0312673922/?tag=slatmaga-20"><em>The Rise of Enlightened Sexism</em></a>, “Janet Reno took a look at the masquerade of femininity that women are supposed to don and just said no.”</p>
<p>For playing by her own rules, Reno became a pop culture plaything, and the punch line always involved how much like a <em>man</em> she really must be. David Letterman’s top 10 list of dangerous toys included “Rock ’em Sock ’em Janet Reno.” Jay Leno said that not appointing an independent counsel to investigate the president was “Janet Reno’s toughest decision since boxers or briefs.” And on <em>Saturday Night Live</em>, Will Ferrell donned a plain blue dress and played her in “Janet Reno’s Dance Party,” a recurring skit that, as Douglas puts it, “featured the nation’s first female attorney general as a pathetic, love starved nerd who threw herself at men and danced like a robot on Angel dust. A giant; too butch; unloved; a freak.”</p>
<p>Reno’s answer to cultural hazing was old-fashioned grace. She appeared on the last episode of “Janet Reno’s Dance Party,” crashing through a wall and <a href="https://img.washingtonpost.com/wp-apps/imrs.php?src=https://img.washingtonpost.com/blogs/style-blog/files/2016/11/wf4_image_982w.jpg&amp;w=480">dancing with Ferrell</a>. It simply didn’t bother her to be different, because she loved her workaholic, justice-obsessed life so much. (And dancing.) As we grieve her death, I think of riding with her in a car in 1997, explaining that there was this new skit on <em>Saturday Night Live</em> and that she ought to know in case someone asked her about it. She thought for a moment, then asked, “What’s <em>Saturday Night Live</em>?”</p>Mon, 07 Nov 2016 22:39:13 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/in_memory_of_janet_reno_the_first_female_attorney_general.htmlBert Brandenburg2016-11-07T22:39:13ZFor Janet Reno, feminism was all about doing the job.News and PoliticsWhy Washington Could Never Figure Out Janet Reno100161107020justice departmentBert BrandenburgJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/in_memory_of_janet_reno_the_first_female_attorney_general.htmlfalsefalsefalseJanet Reno, the woman Washington never figured out:For Reno, feminism was all about doing the job.Tim Sloan/Getty ImagesFormer Attorney General Janet Reno speaks on April 17, 2009, in Washington.Chasing Electoral Ghostshttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/we_looked_at_130_million_ballots_from_the_2012_election_and_found_zero_fraud.html
<p>In the months leading up to Tuesday’s vote, Donald Trump <a href="http://www.factcheck.org/2016/10/trumps-bogus-voter-fraud-claims/">has repeatedly asserted</a> that there will be rampant voter fraud on Election Day, stoking fears that this election will be “rigged.” Several in-depth investigations have found <a href="https://www.brennancenter.org/analysis/debunking-voter-fraud-myth">no indication of widespread voter fraud</a>, but skeptics argue that it’s simply hard to detect. In an effort to determine whether such fraud does exist, we undertook a comprehensive analysis using a national voter file compiled by <a href="http://targetsmart.com/">TargetSmart</a> to statistically <a href="https://www.dropbox.com/s/bbzgpeo1rh1s7dy/OnePersonOneVote.pdf?dl=0">analyze 130 million ballots cast in the 2012 presidential election</a>. Like past studies on this topic, <a href="https://www.dropbox.com/s/fokd83nn4x6wuw9/public_version.pdf?dl=0">we found no evidence of large-scale fraud</a>. There continues to be simply no proof that U.S. elections are rigged.</p>
<p>There are three primary avenues worth considering when analyzing potential voter fraud: (1) impersonation of a registered voter, (2) voting despite being ineligible, and (3) double voting.</p>
<p>The first possibility, voter impersonation, is difficult to pull off and hard to scale. The risk is that you will be discovered if the actual registrant shows up to vote. Though this cannot happen if the registrant is deceased, such fraud can be readily detected by linking registration records to vital statistics like death records. <a href="http://www.factcheck.org/2016/10/trumps-bogus-voter-fraud-claims/">Extensive audits have found essentially no fraud of this type</a><u>,</u> and <a href="http://www.indystar.com/story/news/politics/2016/10/24/indiana-voter-fraud-real-but-rarely-matters/92508486/">Indiana could not produce a single example</a> of this ever happening when its voter ID law was challenged in court. The second possibility, voting despite ineligibility, is also unlikely to purposefully happen because the risk of an undocumented immigrant subjecting himself to detection is not worth the low potential reward of a single extra ballot cast for one side. Although a recent academic article <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2014/10/24/could-non-citizens-decide-the-november-election/">claimed</a> to show that some noncitizens vote, these claims have since been <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2016/10/19/trump-thinks-non-citizens-are-deciding-elections-we-debunked-the-research-hes-citing/">debunked</a>. (But that hasn’t stopped the Trump campaign from <a href="http://www.slate.com/blogs/the_slatest/2016/10/19/trump_campaign_keeps_pushing_debunked_evidence_of_voter_fraud_it_s_working.html">holding it up</a> as evidence of voting fraud.) Finally, votes cast twice within the same state—as Trump <a href="http://www.cnn.com/2016/10/30/politics/donald-trump-write-in-ballots/">hinted</a> might be happening in Colorado—are easily detected and eliminated by the state’s election administrators. Previous <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=997888">research</a> turned up little evidence of such efforts to game the system.</p>
<p>This leaves interstate double voting as the most promising route for would-be fraudsters, and that was the focus of our analysis. Dick Morris, a prominent conservative political pundit, has <a href="http://thehill.com/opinion/dick-morris/203019-dick-morris-investigate-2012-vote-fraud">claimed this type of activity led to more than 1 million fraudulent votes in the 2012 U.S. presidential election</a>. It’s true that interstate double voting is harder to detect because voting records cannot be easily linked across state lines. Kris Kobach, the Republican secretary of state of Kansas, promotes the <a href="http://www.nased.org/NASED_Winter_2013_PP_Presentations/KANSAS.pdf">Interstate Crosscheck Program</a>, which coordinates the collection of registration records across states as a way to resolve this issue. As of 2014, 28 participating states (up from 15 in 2012) provided the organization with their registration records and in return received a list of registrations in their own state that matched the first name, last name, and date of birth recorded on a registration in another member state. In the 2012 election, for instance, Crosscheck flagged more than 1.4 million registrations as potential duplicates that member states should further scrutinize and potentially purge.</p>
<p>Here’s the problem with Crosscheck’s approach: In a country where 130 million votes are cast in a presidential election, there is a surprisingly high chance that two ballots cast under the same first name, last name, and date of birth actually belong to two different people. While it is unlikely that any two randomly selected vote records would share a common first name, last name, and birthdate, a sizable number of these cases will occur once we aggregate over the 10 quadrillion pairs of vote records in the population. This phenomenon is what statisticians call the <a href="https://en.wikipedia.org/wiki/Birthday_problem">birthday paradox</a>.</p>
<p>In the 2012 presidential election, for example, 8,575 ballots were cast under the name John Smith among the votes we analyzed. Just considering people born in 1970, 141 votes were cast by people named John Smith. And among these 141 John Smiths, there were 27 pairs that had the exact same birthdate and so would be flagged as potential double voters under Crosscheck’s methodology. But in a group of 141 people, you would in fact expect to see 27 pairs that share the same birthday by chance alone.</p>
<p>Applying this statistical strategy to all the votes cast in the 2012 election, we estimate that, at most, 1 in 4,000 votes had the potential to be double votes. Then we went further and compared some of the electronic vote records to the original poll books. We occasionally discovered errors in the electronic records, indicating someone voted when the poll book revealed they had not. Nearly all purported double voting can be explained by the birthday paradox coupled with such errors in the voter data (i.e., our estimate for double voting approaches zero).</p>
<p>A closer inspection of the data Crosscheck sent to Iowa—which we obtained through a public information request—corroborates our statistical estimation. In both 2012 and 2014, Crosscheck flagged more than 100,000 Iowa registrations as potential duplicates, with a matching registration in another state. In only about 5 percent of these cases were both registrations used to cast a ballot. And in all but six total cases (in both years combined), the two registrations used to cast a ballot had inconsistent middles names or different Social Security numbers, indicating they are likely different people. If Iowa used Crosscheck’s guidelines for purging registrations, <a href="http://www.rollingstone.com/politics/features/the-gops-stealth-war-against-voters-w435890">as some counties have done</a>, about 1,200 registration records used to legitimately cast a single vote would have been purged in order to prevent these six potential double votes.</p>
<p>The current specter of voter fraud was promoted by Republicans and carried forward aggressively by the GOP’s current nominee. Republicans argue that Trump’s <a href="http://www.nytimes.com/2016/10/19/us/politics/donald-trump-voting-election-rigging.html?_r=0">volunteer poll monitors</a> thwart voting by ineligible voters, that stringent <a href="http://www.salon.com/2014/10/13/gop_voter_id_law_gets_crushed_why_judge_richard_posners_ruling_is_so_amazing/">voter identification laws</a> block voter impersonation, and that ending early voting prevents double voting. While once again it’s been demonstrated that there is little voter fraud for these tactics to prevent, such rhetoric and policies disenfranchise actual voters. Election rigging is not the problem. Our electoral integrity is not threatened by the little voter fraud that may occur, but rather by the disproportionate response that makes it harder for so many eligible Americans to vote.</p>
<p><strong><em><a href="http://www.slate.com/topics/c/2016_campaign.html">Read more Slate coverage of the election.</a></em></strong></p>Mon, 07 Nov 2016 10:55:00 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/we_looked_at_130_million_ballots_from_the_2012_election_and_found_zero_fraud.htmlSharad GoelMarc MeredithMichael MorseDavid RothschildHoushmand Shirani-Mehr2016-11-07T10:55:00ZWe looked at 130 million ballots from the 2012 election and found practically zero evidence of fraud.News and PoliticsWe Looked at 130 Million Ballots From the 2012 Election and Found Practically Zero Potential Fraud1001611070022016 campaigndonald trumpvoting rightsSharad GoelMarc MeredithMichael MorseDavid RothschildHoushmand Shirani-MehrJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/we_looked_at_130_million_ballots_from_the_2012_election_and_found_zero_fraud.htmlfalsefalsefalseWe looked at 130 million ballots from 2012 and found practically zero potential fraud:It’s a myth, plain and simple.Chip Somodevilla/Getty ImagesDonald Trump has stoked fears of voter fraud and claimed that the election is “rigged.” Above, he addresses a campaign rally on Thursday in Selma, North Carolina.Not Intimidatedhttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_campaign_promises_not_to_intimidate_voters_on_election_day_that_s.html
<p>On <a href="http://electionlawblog.org/?p=88641">Friday morning</a>, a federal district court <a href="http://electionlawblog.org/?p=88127">will hear arguments</a> in a <a href="https://www.brennancenter.org/legal-work/dnc-v-rnc-consent-decree">dispute</a> between the Democratic National Committee and the Republican National Committee over whether the RNC, the Trump campaign, and its allies are violating a long-standing consent decree barring the RNC from engaging in intimidation of minority voters at the polls. It’s not the only case being heard on an emergency basis this week: Democrats <a href="http://electionlawblog.org/?p=88351">have filed suit against</a> Donald Trump, Republican state parties, and Trump ally Roger Stone in the battleground states of Arizona, Nevada, <a href="http://electionlawblog.org/?p=88646">North Carolina</a>, Ohio, and Pennsylvania. In the Nevada suit, <a href="http://electionlawblog.org/?p=88651">Stone has been ordered to explain</a> at a separate Friday hearing what <a href="https://www.theguardian.com/us-news/2016/oct/20/citizens-for-donald-trump-exit-poll-roger-stone-rigged-election-claim">his questionable “Stop the Steal” organization</a> is planning for Election Day.</p>
<p>But regardless of how these hearings go Friday, the lawsuits have already borne fruit by getting the campaign on the record with its plans and promises not to intimidate voters. In an important development on Thursday afternoon, the Trump campaign in response to the lawsuits sent <a href="http://electionlawblog.org/?p=88629">an email</a> to Nevada campaign workers describing for them what constitutes illegal harassment and what constitutes good behavior. By getting Trump on the record promising not to harass voters with its “ballot security” activities, the Democrats have significantly lessened the chances of Trump-driven voter intimidation on Election Day.</p>
<p>The main suit stems from RNC activities targeted at minority voters going back to the 1980s ostensibly to stop voter fraud but really about keeping down the Democratic vote. At the time, the Republican Party was accused of sending off-duty police officers to patrol voting precincts in minority areas, it used vote “<a href="http://www.projectvote.org/issues/list-maintenance/voter-caging/">caging</a>” to send mail to remove minority voter from the rolls (something that was still <a href="http://www.slate.com/blogs/the_slatest/2016/11/03/federal_judge_slams_north_carolina_voter_purge.html">happening this week in North Carolina</a>), and it engaged in enough other illicit activities that the RNC settled the case through a consent decree that makes the organization liable for contempt if it violates it. The decree was extended in the past decade over RNC objections—which went all the way to the Supreme Court—and expires next year unless the Democrats show that the RNC or its agents are still violating it.</p>
<p>Democrats have presented evidence of the Trump campaign’s encouragement of intimidation, specifically its beating of the voter fraud drum and the candidate’s words instructing his supporters, after they vote, to go to “<a href="http://www.latimes.com/opinion/op-ed/la-oe-hasen-vote-rigging-20160816-snap-story.html">certain areas</a>” to look for such fraud (certain areas being code for majority black neighborhoods in Philadelphia and other cities). There’s a good argument that the close working relationship between Trump and the RNC makes them agents of each other, and thus that any forbidden Trump activities would mean a violation of the consent decree by the RNC. Democrats have also presented evidence of poll-watchers who said they are from the RNC, a claim that the RNC denies. (Among other things, the RNC says some of these people were working for a consultant hired by the RNC but not to do this particular kind of work.) On Wednesday, the RNC issued its response to a court order questioning its involvement in voter suppression efforts by basically having <a href="http://www.slate.com/blogs/the_slatest/2016/11/01/federal_judge_to_republican_national_committee_are_you_violating_the_consent.html">statements</a> retracted from Trump running mate Mike Pence and campaign manger Kellyanne Conway that had suggested that the campaign and the RNC were working together to prevent voter fraud.</p>
<p>It is not clear what the judge in the DNC versus RNC case will do or what the other judges will do in the state-centered lawsuits that could actually help on Election Day. It might seem that an order from the courts for these entities not to engage in voter intimidation would be too vague to be enforced, and in any case such an order would not deal with <a href="https://electionlawblog.org/?p=85598">any rogue Trump vigilantes</a> who might head to polling places to make trouble.</p>
<p>While it is true that we cannot discount the problem of Trump vigilantes, the suit has forced the RNC, state parties, and the Trump campaign to disclose their official plans. In the Nevada suit, for example, the morning after the court held an emergency hearing, <a href="http://electionlawblog.org/?p=88629">the Trump campaign sent out an email</a> to all those supporters who signed up to be poll-watchers in Nevada that carefully limits the circumstances in which they can try to challenge voters. <a href="https://www.scribd.com/document/329911609/Nv-Trump-Filing">All over the materials</a> are calls for Trump supporters to avoid anything that looks like voter intimidation.</p>
<p>It’s no surprise then that Marc Elias, the Democratic Party’s superlawyer who has been leading this amazing flurry of voting rights lawsuits, <a href="https://twitter.com/marceelias/status/794285809415364608">tweeted</a> that the letter directing Nevada Trump supporters not to challenge voters without getting legal advice first was “the first success from the lawsuit.”</p>
<p>And it is not only the fact that the suit appears to have spurred the Trump campaign to warn against activities that might intimidate voters, which makes it a win. Getting the parties on record as saying they won’t engage in illegal activities is valuable in and of itself, because defendants know when they make such representations to the court, the court will not look charitably on them later if they don’t keep their word. So in a way, the Democrats have already won the fight to prevent voter intimidation on Election Day.</p>
<p>Of course, none of this likely would have been necessary if we did not have the most irresponsible presidential candidate of modern times trying (and succeeding) in <a href="https://electionlawblog.org/?p=85688">convincing his supporters</a> that the vote is rigged and that if his opponent wins it will be because she stole the election. It is pernicious and already sets the stage to delegitimize a Clinton presidency if she is elected as America’s first female president on Tuesday. <a href="https://electionlawblog.org/?p=85289">That alone should be reason enough</a> to extend the RNC consent decree for another eight years.</p>
<p>But on Election Day, we should all rest at least a bit easier, knowing that much of what the Trump campaign might have planned to deter Democratic voters from going to the polls is unlikely to materialize.</p>
<p><strong><em><a href="http://www.slate.com/topics/c/2016_campaign.html">See more of Slate’s election coverage.</a></em></strong></p>Fri, 04 Nov 2016 00:02:35 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_campaign_promises_not_to_intimidate_voters_on_election_day_that_s.htmlRichard L. Hasen2016-11-04T00:02:35ZA court has gotten the Trump campaign on the record promising not to intimidate voters on Election Day. That is huge.News and PoliticsA Court Has Gotten the Trump Campaign to Promise Not to Intimidate Voters on Election Day. That’s Huge.1001611030262016 campaignhillary clintondonald trumpRichard L. HasenJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/trump_campaign_promises_not_to_intimidate_voters_on_election_day_that_s.htmlfalsefalsefalseA court got the Trump campaign to promise not to intimidate voters on Election Day.Here’s why it matters.Chip Somodevilla/Getty ImagesDonald Trump holds a campaign rally on Wednesday in Pensacola, Florida.&nbsp;Roe v. Wade Is on the Ballothttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/roe_v_wade_is_on_the_ballot_this_election_day.html
<p>Sometimes it’s easy to become a victim of your own success. Other times, it’s easy to become a victim of your own illusions. When it comes to the Supreme Court, liberals seem to be a bit of both right now, especially on issues that affect women. What many don’t seem to realize is that this election isn’t just about not elevating a misogynist of Donald Trump’s caliber to the White House. It’s now coming down to whether Republican Senators can reverse women’s progress even in the event that we elect our first female president.</p>
<p>First, here are some successes to which progressives are falling prey: There are now three women on the U.S. Supreme Court, whereas eight years ago there was only one. Also—thanks in no small part to those three women—there was a galactic win for reproductive freedom last June in <a href="https://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf"><em>Whole Woman’s Health v. Hellerstedt</em></a>, the most significant abortion case the high court has heard <a href="https://en.wikipedia.org/wiki/Planned_Parenthood_v._Casey">since 1992</a>. (There was also a nonloss for contraceptive freedom in a second case, <em>Zubik v. Burwell</em>.) As a direct result of the<em> </em>abortion victory, punitive and pointless abortion regulations have been struck down around the country, and women were again <a href="http://www.motherjones.com/politics/2016/10/virginia-becomes-first-state-change-abortion-clinic-restrictions-based-supreme-cour">entrusted with their own health decisions</a> in ways that were unimagined even a year ago.</p>
<p>Stop and think about that: For more than 200 years in this country, nine men had the final say over every aspect of women’s lives, from whether we could <a href="https://en.wikipedia.org/wiki/Goesaert_v._Cleary">tend bars</a> to whether we could <a href="https://blogs.loc.gov/law/2015/03/women-in-history-lawyers-and-judges/">take the bar exam</a>. And in June of 2016, we got to decide for ourselves whether we could be in charge of our own bodies. It’s almost unimaginable to most of us that in 1972 that notion was a far-off dream.</p>
<p>And now our illusions: We all like to think that Supreme Court decisions are sealed in amber, protected for the ages, which leads us to downplay the importance of the future makeup of the court. In a <a href="http://www.people-press.org/2016/07/07/4-top-voting-issues-in-2016-election/">June Pew survey</a>, the question of Supreme Court appointments was the <em>11<sup>th</sup></em> most important issue in the election among Clinton voters. Abortion was the 14<sup>th</sup> out of 14. We put that fight behind us last June right? We all also like to think that the Supreme Court is a magical entity, wherein—regardless of the circumstances in the rest of the country, like maybe having a president who <a href="http://www.slate.com/blogs/xx_factor/2016/05/18/trump_says_his_quote_about_women_deserving_some_form_of_punishment_for_abortion.html">has said</a> there should be “punishment” for women who have abortions—justice rains down like manna. Senate Republicans are paradoxically victims of that same flawed logic. Their <a href="http://www.huffingtonpost.com/entry/richard-burr-supreme-court_us_5818db21e4b0390e69d2d9b7">overt hints</a> that no nominee put forth during a potential Hillary Clinton presidency will ever get a hearing, and that ending the next four years with a court of six or seven justices would be a political triumph, showcases their conviction that the courts are a kind of religious national ornament. The new theory seems to be that the Constitution interprets and executes itself.</p>
<p>Those who stopped paying attention to the high court after the pop-up abortion victory last June are succumbing to precisely the same illusion: It hardly matters that we—as women—dodged a reproductive-rights bullet last spring, if we are about to be flattened by a reproductive-rights tank. And make no mistake, the <a href="http://www.chicagobusiness.com/article/20161103/ISSUE07/161109954#utm_medium=email&amp;utm_source=ccb-morning10&amp;utm_campaign=ccb-morning10-20161103">current GOP promises to obstruct any and every justice named by a President Clinton</a>, are an oncoming <a href="https://en.wikipedia.org/wiki/Super-heavy_tank#World_War_II_period">Panzer</a>. If you were afraid for women’s health last spring, you should be flipping out right now. (And you should have been afraid last spring.) Because everything that was on the line in the two women’s health appeals at the court last term are still on the line today. Except now it’s not up to the court to decide if women and their bodies matter. It’s up to voters across the country and whom we elect to the Senate.</p>
<p>Why? At the most basic level, Republican-dominated state legislatures have continued to press for more and more onerous abortion restrictions, including <a href="http://yubanet.com/usa/texas-ignores-concerns-over-mandatory-burial-cremation-of-embryonic-and-fetal-tissue-from-abortions-or-miscarriages/">burial and cremation requirements for abortions and miscarriages</a> and the return of <a href="http://www.care2.com/causes/here-comes-the-return-of-spousal-consent.html">spousal consent laws</a>. Without fully staffed lower courts to enforce the Supreme Court’s framework from the <em>Whole Women’s Health</em> decision, those patently unconstitutional laws will continue to proliferate. At the highest level, the GOP’s current plan seems to be to starve the court of replacement justices until there’s a Republican president to nominate justices that would overturn <em>Roe</em>. This is essentially what Sen. Richard Burr was indicating when he <a href="http://www.slate.com/blogs/the_slatest/2016/11/01/richard_burr_s_supreme_court_comments_make_the_gop_s_plan_clear.html">said this week</a>, “if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”</p>
<p>Those intent on shuttering the courts won’t stop at blocking some Supreme Court nominees, though. If they can block all progressive outcomes by preserving judicial emergencies and open seats in the lower courts—something Burr <a href="http://www.wral.com/editorial-if-burr-won-t-fill-judicial-vacancies-pick-someone-new-to-fill-his-senate-seat/16185769/">bragged about having done for the <em>past 11 years</em></a>—they will do that as well. Especially if they face no consequences at the polls. Senate Republicans aren’t just threatening such conduct; they are openly campaigning on it. Lower court vacancies mean fewer judges, and a decline in access to justice for everyone.</p>
<p>Please consider this as well: Ruth Bader Ginsburg is 83. Anthony Kennedy is 80. Stephen Breyer is 78. Right there you have three members of the five-justice majority in last year’s abortion case. The idea that this case is safe from imminent review and reversal is comforting, but profoundly untrue. If a President Trump were allowed to fill the vacant Scalia seat and the seat of any one of those justices should they leave the bench in the next four years, <em>Roe v. Wade</em> would likely be done. And if Senate Republicans can effectively block any and all replacements for the current vacancy and any new ones until a Republican is in office, the outcome will be the same.</p>
<p><a href="http://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html">Donald Trump has promised to seat only jurists who would overturn <em>Roe</em></a>. Indeed, Trump is counting on pro-life voters who would otherwise loathe him to vote for him <em>only</em> because of the Supreme Court. With a few exceptions, including notably <a href="http://www.nytimes.com/2016/11/02/opinion/campaign-stops/from-roe-to-trump.html?smid=fb-share">Ross Douthat writing in the <em>New York Times</em> on Wednesday</a>, that issue alone is deemed worth casting a vote for an unqualified, incurious bully.</p>
<p>It’s also important to note, again, that this new absolute obstructionism on the Senate side is not some standard operating procedure by both sides. Until recently, <a href="http://www.chicagobusiness.com/article/20161103/ISSUE07/161109954#utm_medium=email&amp;utm_source=ccb-morning10&amp;utm_campaign=ccb-morning10-20161103">most U.S. Senators felt at least some compulsion to vote for qualified jurists</a>, even if they were nominated by a president of the opposing party. Certainly many in the Senate have objected to some qualified jurists over the years—including <a href="http://www.usatoday.com/story/news/politics/2016/02/17/obama-now-regrets-his-2006-alito-filibuster-white-house-says/80514152/">Obama</a> when he was representing Illinois in that body. But the novel principle that—<a href="https://twitter.com/DouthatNYT/status/793448508225417216">as Douthat espoused in a tweet on Tuesday</a>—GOP obstruction happens because “current liberal judicial theory is inherently illegitimate,” well, that is code for “no jurist named by a Democrat will <em>ever</em> be legitimate.”</p>
<p>You can pretend it’s about “judicial theory,” but please note that nobody has been saying a word—pro or con—about Garland’s “judicial theory.” This is about the presumed illegitimacy of Democratic presidents and the presumptive illegitimacy of every last one of the judges they select. It’s not even really about that, ultimately. It’s about the triumph of raw power over actual governance, and a sacrifice of precious government institutions to the need to win at all costs.</p>
<p>It is no accident of history that the Supreme Court has suddenly been deemed less-than-a-court, and that judges seated by Democrats are less-than-fully-judges, just at this watershed moment when women occupy three of those seats, a black president has nominating rights over another seat, and a woman president is likely poised to claim that nominating power herself. A Supreme Court that has weathered centuries of petty partisanship—up to and including efforts to hobble it, pack it, and limit its jurisdiction—is now being held out as something to be killed outright, but—oddly enough—it happens only now that white men are no longer fully in charge. This is no accident.</p>
<p>If you go to the polls next week thinking that abortion rights are currently safe, settled law, you fail to understand that the <em>only</em> thing Senate Republicans now appear to be running on is the purposeful dismantling of <em>Roe v. Wade</em> via the purposeful dismantling of the court itself<em>.</em> The fantasy of the 2016 election is that the court, the Constitution, and the rule of law will survive the damage a four-year GOP Senate shutdown can bring. They cannot. The only bulwark against terrible constitutional backsliding for women in the coming years is the Supreme Court, and some Republicans in the Senate are staking their careers on the fact that both Republicans and Democrats think the courts can withstand anything. We need to vote in the Senate races like the court itself is on the ballot. Decades of progress for women’s rights depend on it.</p>
<p><em><a href="http://www.slate.com/topics/c/2016_campaign.html">Read more Slate coverage of the 2016 campaign.</a></em></p>Thu, 03 Nov 2016 21:49:19 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/roe_v_wade_is_on_the_ballot_this_election_day.htmlDahlia Lithwick2016-11-03T21:49:19ZAbortion rights are on the line in this election and people don’t seem the least bit concerned.News and PoliticsDon’t Fool Yourselves:
<em>Roe v. Wade</em> Is on the Ballot on Tuesday100161103022supreme court2016 campaigndonald trumpDahlia LithwickJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/roe_v_wade_is_on_the_ballot_this_election_day.htmlfalsefalsefalseDon’t fool yourselves: Roe v. Wade is on the ballot on Tuesday.It’s pretty simple.Mark Wilson/Getty ImagesSen. Richard Burr during a news conference on Capitol Hill on June 3, 2014, in Washington, D.C.Who Watches the Poll Watchers?http://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/can_the_courts_stop_trump_supporters_from_harassing_voters.html
<p>In an election year that has brought out the very worst in us, the mounting anxiety around the act of voting itself should hardly surprise us. Taking cues from the Republican National Committee’s <a href="http://www.nytimes.com/2016/10/31/opinion/the-rncs-dont-get-out-the-vote-drives.html?action=click&amp;pgtype=Homepage&amp;clickSource=story-heading&amp;module=opinion-c-col-right-region&amp;region=opinion-c-col-right-region&amp;WT.nav=opinion-c-col-right-region">decades-old playbook</a>, Donald Trump’s campaign and his supporters are subtly pushing an agenda of voter suppression, intimidation, and harassment. If America’s new “<a href="http://www.vox.com/policy-and-politics/2016/10/19/13288594/new-silent-majority">silent majority</a>” of Hillary Clinton voters is afraid of its own polling places, that only benefits Trump and the Republican Party. The fact that voter intimidation imperils democracy itself? A feature, not a bug.</p>
<p>According to a <a href="http://www.bloomberg.com/news/articles/2016-10-27/inside-the-trump-bunker-with-12-days-to-go"><em>Bloomberg</em> <em>Businessweek </em>report last week by Joshua Green and Sasha Issenberg</a>, the Trump digital campaign is running “three major voter suppression operations” aimed at lowering turnout among liberal millennials, young women, and black voters. An unnamed senior official says the campaign is targeting women online with information about Bill Clinton’s treatment of women and trying to target ads at black voters, especially in Florida, flagging <a href="http://www.politifact.com/truth-o-meter/statements/2016/aug/28/reince-priebus/did-hillary-clinton-call-african-american-youth-su/">Hillary Clinton’s “superpredator” remarks</a> from the 1990s. <a href="http://www.nytimes.com/2016/10/28/us/politics/donald-trump-campaign-voter-suppression.html">Experts claim these tactics are not precisely vote suppression</a> so much as efforts to discourage voting. The Trump campaign for its part denies any of this is happening.</p>
<p>The far bigger worry for many civil rights attorneys is the new vote-suppression message fomented in recent weeks by Trump himself, with his oft-repeated claims that the <a href="http://www.cnn.com/2016/10/30/politics/donald-trump-write-in-ballots/index.html?sr=fbCNN103016donald-trump-write-in-ballots1131PMStoryLink&amp;linkId=30507082">election system</a> is “<a href="http://www.nytimes.com/2016/10/17/us/politics/donald-trump-election-rigging.html">rigged</a>” and that his supporters should go out and “<a href="http://www.nytimes.com/2016/10/19/us/politics/donald-trump-voting-election-rigging.html">watch the polls</a>.” His admonishment that his supporters must themselves monitor minority precincts seems a recipe for voter anxiety at best and actual conflict at worst. Trump’s increasingly vocal warning that people are “going to walk in and they’re going to vote 10 times maybe” implicitly deputizes his followers to do something about all that supposed fraud.</p>
<p>How will this “monitoring” work in practice? Trump adviser Roger Stone <a href="https://www.theguardian.com/us-news/2016/oct/20/citizens-for-donald-trump-exit-poll-roger-stone-rigged-election-claim">told the<em> Guardian</em></a> that 1,300 volunteers for “Citizens for Trump” plan to conduct “exit polls” in nine cities in swing states with large populations of minority voters. <a href="https://stopthesteal.org/">Stone’s “Stop the Steal” project</a>, which recruits volunteers from, among other places, <a href="http://mediamatters.org/research/2016/10/26/trump-ally-roger-stone-s-plan-intimidate-voters-polls/214125">Alex Jones’ conspiracy-minded radio audience</a>, boasts of “targeted exit-polling in targeted states and targeted localities.” The <em>Guardian</em> goes on to quote polling expert David Paleologos, the director of the Suffolk University Political Research Center, who explains that effective exit-polling is done in bellwether precincts, not in majority-minority ones. “It doesn’t sound like that’s a traditional exit poll,” Paleologos explained. “It sounds like that’s just gathering data, in heavily Democratic areas for some purpose.”</p>
<p>Another Roger Stone group, this one called Vote Protectors, had a handy tool on its website that allowed volunteers to create an official-looking badge they could wear while ambling around polling places questioning people. After the <a href="http://www.huffingtonpost.com/entry/vote-protectors-voter-intimidation_us_580e4e63e4b0a03911ee03bc"><em>Huffington Post</em> reported on it, the site was taken down</a>. As we have <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2016/10/what_constitutes_illegal_voter_intimidation.html">previously explained</a>, it’s certainly legitimate to sign up to volunteer as a poll watcher. Roaming free with a sidearm looking for “people who can’t speak American,” as one Trump zealot put it, is not that. The rules for what constitutes legal poll-watching activities differ by state. Pennsylvania, for instance, requires that poll watchers be registered to vote in the county where they will serve. (Republicans have sued to be allowed to send poll watchers from rural counties into the cities.) In Ohio, where you must be formally credentialed as a poll watcher, uncredentialed Trump supporters have shown up to elections boards saying they are election observers. In any of these situations, poll watchers who berate or photograph voters could reasonably be considered to be in violation of federal statutes that prohibit conspiracies to intimidate voters.</p>
<p>All of this is happening as the <a href="http://www.npr.org/2016/10/19/498559568/for-the-first-time-in-50-years-federal-observers-wont-be-monitoring-the-election">number of federal election observers has declined significantly</a> in the aftermath of the Supreme Court’s 2013 decision in <em>Shelby County v. Holder</em>. In 2012, federal observers were dispatched to jurisdictions in 13 states. This year, they will only be permitted <a href="https://www.adn.com/alaska-news/2016/10/24/why-the-us-cut-poll-observers-despite-fear-of-intimidation/">inside polling places in some parts of four states</a>. The remaining monitors also have diminished authority this time around. For one thing, they can no longer enter most polling places unless they are invited inside.</p>
<p>And all this also happens, as <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2016/10/republicans_are_already_suppressing_minority_votes_all_over_america.html">Mark Joseph Stern recounts, amid mass confusion</a> in the Republican-led states that passed laws post–<em>Shelby County </em>that had both the purpose and effect of making it more difficult to vote. At least 14 states have new voting restrictions this year, ranging from confusing voter ID laws, diminished Sunday and early voting opportunities, and new registration requirements. Voters are figuring this out as they go. Even though many of these new laws have been struck down by the courts, we are now seeing concerted efforts in states like Texas and North Carolina to keep them alive in practice, <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2016/10/republicans_are_already_suppressing_minority_votes_all_over_america.html">through mass purges of the voter rolls and misinformation campaigns</a>. Election workers in these and other states appear genuinely confused about what’s legal and what isn’t.</p>
<p>Democrats have responded with calls for <a href="https://theintercept.com/2016/10/27/voter-suppression-is-the-real-election-scandal/">more poll monitors and the dissemination of better information</a>. They have also filed an array of lawsuits, attempting to halt voter-intimidation efforts in a number of states. One of the most fertile sources of litigation stems from the fact that the Republican National Committee has been operating under a consent decree since 1982. At the time, a federal court found the RNC had been <a href="http://www.nj.com/politics/index.ssf/2016/10/nj_voter_intimidation_case_at_center_of_democratic.html">attempting to intimidate minority voters</a> by hiring armed off-duty police officers who would linger at polling places. In the 1981 New Jersey gubernatorial election, GOP officials also attempted to purge the voter rolls of black or Hispanic voters. The decree has been extended twice, applies across the country, and can be extended again next year, which is what plaintiffs now seek.</p>
<p>Last week, the <a href="http://www.politico.com/story/2016/10/voter-intimidation-democrats-rnc-230352#ixzz4Ogx236wm">Democratic National Committee filed suit in a federal court in New Jersey to try to block the RNC</a> from coordinating with Trump’s campaign on any “ballot security” efforts. The lawsuit contends that participation in any such vote-suppression activity would be a violation of the consent decree. The Trump campaign is not itself bound by that decades-old decree, but if it works together with the party, it could presumably be in trouble with the courts. And in the New Jersey complaint, it’s alleged there is “ample evidence that Trump has enjoyed the direct and tacit support of the RNC in its ‘ballot security’ endeavors.”</p>
<p>As professor <a href="http://electionlawblog.org/?p=88351">Richard L. Hasen of the University of California–Irvine School of Law noted on Sunday</a>, another group of lawsuits was filed this week in Nevada, Arizona, Pennsylvania, and Ohio, against the Trump campaign, the state Republican parties, and “Stop the Steal.” Led by Marc Elias, general&nbsp;counsel for the Clinton campaign, the suits are asking courts to step in and bar the defendants&nbsp;from monitoring polls, verbally harassing voters, and following them around with cameras. These suits allege the defendants have violated the 1965 Voting Rights Act and an 1871 law aimed at the Ku Klux Klan, both of which prohibit voter intimidation.</p>
<p><a href="http://online.wsj.com/public/resources/documents/2016_1030_16_cv_02645.pdf">The Ohio suit</a>, for instance, claims Trump “has made an escalating series of statements, often racially tinged, suggesting that his supporters should go to particular precincts on Election Day and intimidate voters.” The <a href="http://www.phillymag.com/news/2016/10/31/democrats-sue-trump-voter-intimidation/">Pennsylvania complaint alleges</a> more than 150 people have signed up as “poll watchers” in the state to ensure “cheating” doesn’t occur. The lawsuit alleges that though Trump’s campaign is not&nbsp;officially responsible for&nbsp;“poll watching” organizations, the campaign has spurred such vigilantes to take action.</p>
<p>Stone was quick to respond to these lawsuits, calling them frivolous. As <a href="http://www.motherjones.com/politics/2016/10/Ohio-democrats-sue-trump-campaign-roger-stone-alleged-voter-harassment">he explained to <em>Mother Jones</em></a>, he plans to initiate a “neutral, scientifically based exit poll in order to compare the actual machine results with the exit poll results in 7,000 key precincts. Precincts are chosen [based] on one-party rule and past reports of irregularities—not racial make-up as falsely reported in the alt-left media.” Stone <a href="http://www.newsweek.com/trump-sued-4-states-voter-intimidation-515488">further explained to<em> Newsweek</em></a> that the 1,400 people across the United States who have volunteered for the project have been instructed to use neutral language and only approach people after they have voted. “Since we are only talking to voters after they have voted, how can we be intimidating them?” he said.</p>
<p><a href="http://www.politicususa.com/2016/11/01/court-orders-discovery-donald-trumps-rncs-poll-monitoring.html">Just this week, the judge in the New Jersey RNC lawsuit</a> ordered discovery on Trump and the RNC’s poll-watching efforts, with a hearing scheduled for this Friday. The court has ordered the RNC to turn over all communications between itself and the Trump campaign connected to poll watching, voter fraud, or “ballot security.” Hasen told me in an email this suit and all the others may have some value in the upcoming days, even if the intimidation itself cannot be halted. As he put it: “With just a week before the election, it is not clear that the courts will be directly ordering Republicans, the Trump campaign, or Stone not to engage in ‘voter intimidation.’ But the suits will help everyone know what the plans are, and hopefully getting everyone on record that there are no plans to intimidate voters will help keep things a little cooler on election day.”</p>
<p>In other words, if all the potential surprises are on the record, maybe there will be fewer surprises at the polls. Whatever happens next week, the systematic hassling and monitoring of voters in minority precincts will lead to longer lines and more frustration, which will itself decrease minority voting. As it turns out, it’s almost impossible to “rig” presidential elections. Rigging democracy itself, by compromising the right to vote, appears to be far simpler.</p>
<p><em><a href="http://www.slate.com/topics/c/2016_campaign.html">Read more Slate coverage of the 2016 campaign.</a></em></p>Tue, 01 Nov 2016 19:59:38 GMThttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/can_the_courts_stop_trump_supporters_from_harassing_voters.htmlDahlia Lithwick2016-11-01T19:59:38ZTrump and the RNC have goaded supporters into harassing minority voters on Election Day. Can the courts stop them?News and PoliticsCan the Courts Stop Trump Supporters From Harassing Voters on Election Day?1001611010132016 campaignDahlia LithwickJurisprudencehttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/11/can_the_courts_stop_trump_supporters_from_harassing_voters.htmlfalsefalsefalseCan the courts stop Trump supporters from harassing voters on Election Day?If Hillary Clinton voters are afraid to go to their polling places, that only benefits Trump and the Republican Party.Alex Wong/Getty ImagesVoters wait to cast their ballots during early voting for the 2016 general election at Forsyth County Government Center on Oct. 28, 2016 in Winston-Salem, North Carolina.